Two Views of the Net

Howdy,

Ok, so I've read a rather random assortment of material on internet and law... Instead of trying to pull from that woefully confused and partially forgotten mess of memory, I went back to the start, and searched the web for material that would offer me a sound basis in the fundamentals of internet law. Also, I want this blog to be exclusively focused on content that can be accessed online... Which makes life easier for everyone.

So the closest thing to a comprehensive introduction on the internet and law that I've found comes from Lawrence Lessig, a law professor at Stanford University. His groundbreaking book, Code and Other Laws of Cyberspace, is now available online on a wiki as part of a project to update the text. Lessig is an amazing writer, with a gift of simplifying complex concepts while maintaining clear themes throughout his various arguments. In Code, his focus is on the architecture of cyberspace, and in the promise and limitation of applying American constitutional legal theory to the regulation of cyberspace.

Although Lessig sees the present state of cyberspace regulation as headed in the wrong direction, he provides room for hope. Towards the beginning of the book he argues,

"Control. Not necessarily control by government, and not necessarily control to
some evil, fascist end. But the argument of this book is that the invisible hand
of cyberspace is building an architecture that is quite the opposite of what it
was at cyberspace’s birth. The invisible hand, through commerce, is constructing
an architecture that perfects control—an architecture that makes possible highly
efficient regulation. As Vernor Vinge warned in 1996, a distributed architecture
of regulatory control; as Tom Maddox added, an axis between commerce and the
state."

Lessig suggests that as a society, values need to play a much larger role in how cyberspace regulation is used. For Lessig, as for many authors, there are a number of different regulatory structures that can be applied, and choosing between them is vital to a society that increasingly participates in the cyberworld. He lays out several different possible structures to regulate the issues of privacy, freedom of speech, and intellectual property using the principle of translation. The concept of translation argues that an interpretation and application of law needs to take into account both how the law was written and the context in which the law was written. Namely, although technology has changed, you can still look back at previous decisions and decide whether the law was written in terms of a specific technology, or as a regulation of what that technology represents (and what invasions that technology makes).

Alright, enough book review time, although there's much more to write on Lessig's Code. The reason that Lessig offers such an insightful perspective into the world of internet law is because he offers a structure for how regulation might take place. It is a position founded on the architecture of the internet, and provides a very clear mechanism of regulation (code) and examples of how this might look. As far as the regulation is concerned, Lessig offers an effective overview of the connection between law, code, and regulation, and what actors might or might not be involved (Lessig stresses that the government should be involved, although to what extent varies).

However, there's still the question of values, and how our values will be (or should be) embedded in the laws that govern cyberspace. To illuminate this, I would read Manuel Castells, Informationalism, Networks, and the Network Society, a recent publication that not only makes the case for values and evolving networks, but also nicely summarizes and integrates a lot of Castells previous work. Castells, like Lessig, is concerned about the juncture between commerce and code, although Castells takes a more global view (and therefore not a view that emphasizes American constitutional law). A sociologist, Castells arguments place the development of the internet within a larger rise of what he calls the Network Society, in which power is expressed and contained in networks.

In terms of Lessig's work, Castells is primarily important for two reasons: 1) he emphasizes the characteristics that make networks such as the internet powerful, both in terms of communications and freedom. This might help give a basis for regulation that is founded in both Lessig's conception of translation and American constitutional law, as well as with how other networks are/should be regulated. 2) Castells is deeply concerned with how values emerge in networks, particularly in light of the dominance ocapitalisticic markets and military power. Just as Lessig worries about the convergence of commerce and code, Castells seems devout in his position that networks of communication need to be inherently valued, that the structure of such networks ought to be based on communication as the end goal.

In both, certain forms of regulation threaten to eclipse the values that so desperately need to be a part of internet law. Regulation is therefore seen as the safeguard of values, whether those be positive or negative, democratic or authoritarian, localized or cosmopolitan. My hope is that I will draw on both of these sources as I sort of mull my way through internet law resources on the internet...